The following contribution is by Kristine S. Knaplund, Professor of Law at Pepperdine University School of Law in Malibu, California. Professor Knaplund has written extensively on the legal and ethical issues that arise when children are conceived and born years after a genetic parent has died, including articles in the Arizona Law Review, Kansas Law Review, the Duke Journal of Gender Law and Policy, the Michigan Journal of Law Reform, and the ABA Real Property, Trust and Estate Law Journal. She is an Academic Fellow of the American College of Trust and Estate Counsel, and serves as Vice Chair of the ABA Elder Law, Disability Planning and Bioethics Group.

Yesterday the Court issued its decision in Astrue v. Capato. In an unanimous opinion by Justice Ginsburg, the Court sided squarely with the Social Security Administration, thus giving Chevron deference to a federal agency’s interpretation for the seventh time in the past five years. The case involved two children conceived after their father’s death using his frozen sperm; their application for Social Security survivors benefits was denied on the ground that they did not qualify as his “children” because they were not entitled to inherit from him under applicable state law. The Third Circuit reversed, holding that the undisputed biological children of a deceased wage earner and his widow are the wage earner’s “children” within the meaning of the Social Security Act.

At issue was the meaning of the term “child” in the Act, which states in Section 402(d) that “[e]very child (as defined in § 416(e) of this title) … of an individual who dies a fully or currently insured individual … shall be entitled to a child’s insurance benefit.” Section 416(e), in turn, defines “child” as “(1) the child or legally adopted child of an individual.” The Third Circuit agreed with the Capatos that the meaning of “child” in the statute was plain: it meant the biological child of a married couple. The Supreme Court found some “conspicuous flaws” in this definition. First, nothing in the statute demonstrates that Congress meant to include only the children of married parents; similarly, the Court found no indication that “child” was limited to biological offspring, as the Third Circuit had found. Finally, the Court noted that, even if the Third Circuit definition had been adopted in this case, “it is far from obvious” that the Capato twins would be included. In Florida, as in many states, death ends a marriage, and so they would not qualify as “marital children” in any event.

The Court then turned to Social Security’s interpretation of the word “child.” In the agency’s view, a third section of the Act — Section 416(h) — must be considered in addition to Sections 402(d) and 416(e). Section 416(h)(2)(A) provides: “In determining whether an applicant is the child …of a fully or currently insured individual for purposes of this subchapter, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual … was domiciled at the time of his death.” Although Section 416(e) does not specifically reference Section 416(h), in the Court’s view there was “no need to place a redundant cross-reference.” It cited earlier versions of the Act and similar provisions for determining a spouse, surviving spouse, or parent of an insured individual, none of which included such a cross-reference. Thus, being the genetic child of the wage earner is not sufficient to qualify; the child must satisfy one of the provisions of Section 416(h), such as demonstrating that she is entitled to inherit in intestacy. The SSA’s interpretation, the Court continued, furthers the core purpose of survivors benefits, which are designed to protect dependent family members “against the hardship occasioned by [the] loss of [the insured’s] earnings.” While not all children who inherit in intestacy under state law will be dependent on the wage earner, the Court called this a “workable substitute” in place of individual determinations.

Does this mean that postmortem conception children are “treated as an inferior subset of natural children who are ineligible for government benefits simply because of their date of birth and method of conception,” as the Capatos argued? Not in the Court’s view, or in the view of several courts of appeals: treating these children differently is rationally related to the government’s interest in targeting benefits to those dependent on the wage earner. It also minimizes the administrative burden of proving dependency on a case-by-case basis.

Finally, the Court found that the SSA’s interpretation was at least reasonable, and thus entitled to deference under Chevron.

The Court’s decision resolves a split among the courts of appeals regarding the appropriate definition of a “child” for these benefits. All circuits will now look to one of the gateway provisions of Section 416(h) in making this determination. Ironically, however, the ultimate disposition of these cases will still vary from state to state, in part because state laws of intestacy are far from uniform, and in part because many states have yet to address the specific issue of inheritance by children conceived years after a parent’s death. Seventeen states have enacted laws on this issue: thirteen states allow postmortem conception children to inherit in intestacy, while four states do not. In another five states without specific statutes, courts have split on the issue: three have allowed inheritance, while two have not. That leaves twenty-eight states in which the outcome is uncertain. The SSA has received over one hundred applications for survivors benefits from children conceived postmortem, with the rate of applications increasing significantly in recent years.

Even though the issues of parentage and inheritance have traditionally been left to the individual states, the peculiar case of postmortem conception children would benefit from a national standard. The purpose of the benefits is to replace the deceased wage earner’s income, in cases in which the children could reasonably have expected to rely on that income. A postmortem conception child, by definition, has been conceived long after the insured’s death, and has no legal claim to support from the decedent. The states that allow such children to inherit in intestacy, and thereby qualify for Social Security survivors benefits, do not advance that purpose.

Plain English Summary

The United States Supreme Court decided unanimously that a child conceived and born after a parent’s death cannot rely solely on a genetic connection to the deceased parent in order to qualify for Social Security survivors benefits. Siding with the Social Security Administration’s interpretation of the law, the Court held that all children, including those born via assisted reproduction technology, must either demonstrate that they would be eligible to inherit from their late parent under state law or satisfy one of the statutory alternatives to that requirement. The SSA’s interpretation was more consistent with the core purpose of the Act, which is to protect family members who depend on another family member’s income from hardship if that family member dies.

Upcoming Oral Arguments

3/31Kimble v. Marvel Enterprises, Inc. Whether the Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se”.

On Monday afternoon Justices Anthony Kennedy and Stephen Breyer testified before the House Appropriations Committee. The purpose of the hearing was to discuss the Court’s budget for the next fiscal year and the federal judiciary, but the legislators also took full advantage of the occasion to touch on other topics as well.